Needham v. Cooney

• Decision Date: 04 February 1915
• Docket Number: (No. 381.)
• Citation: 173 S.W. 979
• Parties: NEEDHAM et al. v. COONEY.
• Court: Texas Court of Appeals

173 S.W. 979

NEEDHAM et al. v. COONEY.

(No. 381.)

Court of Civil Appeals of Texas. El Paso.

February 4, 1915.

On Rehearing, February 25, 1915.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Reeves County; Dan M. Jackson, Judge.

Action by P. Albert Cooney against Leslie A. Needham and others. Judgment for the plaintiff, and defendants appeal. Affirmed in part and reversed and remanded in part, and motion for rehearing overruled, except as to the judgment between the defendants.

John B. Dandridge and Leslie A. Needham, both of Chicago, Ill., and Ross & Hubbard and S. B. Pugh, all of Pecos, for appellants. Buck & Starley and Hefner & Cooke, all of Pecos, and Sherman M. Booth, of Chicago, Ill., for appellee.

HIGGINS, J.

Cooney filed suit against Tom Harrison, sheriff of Reeves county, Leslie A. Needham, and the Trans-Pecos Land & Irrigation Company; the substance of the allegations in the petition necessary to a consideration of the questions presented by this appeal being that he had recovered judgment against E. Leslie Cole in cause No. 781 in district court of Reeves county for $25,246.22, with foreclosure of lien on 12 sections of land upon which order of sale issued and sale of the land made thereunder; that at the sale plaintiff bid $9,000 for section 32, which was the highest bid therefor, and same was struck off to him for that amount; that he tendered the sheriff a credit of $9,000 upon his judgment in payment of his bid, and demanded a deed for the land; that the sheriff refused to accept the same in payment of his bid and demanded cash, which plaintiff was unable to pay, and the sheriff thereupon again offered the tract for sale, and same was struck off and conveyed to defendant Needham for the inadequate sum of $1,000; that, upon the sheriff refusing to accept the credit tendered in payment of his $9,000 bid, plaintiff instructed him to return the order of sale unexecuted, which he refused to do; that the sheriff proceeded to separately offer each of the remaining 11 sections for sale, and each of same were by the sheriff knocked down and sold to Needham; that upon the sale of each of said sections plaintiff made bids in excess of the amount bid by Needham, and tendered to the sheriff, in compliance with his bids, a request that he credit same upon his judgment, except 3 sections — to wit, sections 21, 23, and 25 — for which Needham bid and paid $300, $500, and $5,500, respectively, and for which sections Needham was the highest and best bidder; that all of the land was knocked down by the sheriff and deeded to Needham at grossly inadequate prices, except 21, 23, and 25; that Needham had conveyed said land to the Trans-Pecos Land & Irrigation Company, which took it subject to a lis pendens notice of plaintiff's suit and with actual notice of all the facts; that the reason assigned by the sheriff for refusing to accept the tendered credit upon the judgment in payment of plaintiff's bids was the claim by the sheriff that he held a writ of attachment on the judgment in said cause No. 781, and therefore would only accept cash bids; that the attachment held by the sheriff had been issued in a cause pending in the district court of Reeves county, No. 1293, styled F. O. Van Deren, Trustee, et al. v. P. Albert Cooney; that no judgment had ever been rendered foreclosing any attachment lien in said cause No. 1293; that Needham was acting in conspiracy with Chas. H. Thorpe, one of the plaintiffs in cause No. 1293, for the purpose of preventing plaintiff from bidding at said sale, and enabling Needham to purchase said lands at an inadequate price; that plaintiff tendered the sheriff a sufficient sum to cover all commissions due him upon the sale and all costs, and demanded of the sheriff deeds to all of said sections, except 21, 23, and 25, which the sheriff refused; that no part of the money paid by Needham to the sheriff has been paid to the plaintiff, and same was still in the hands of the sheriff; that the aggregate amount bid by Needham and paid to the sheriff on the 9 sections for which he was not the highest bidder aggregated $2,195, and that said 9 sections were worth $22,800; that plaintiff was the highest and best bidder for all of said 9 sections, and the bids of Needham were therefore void.

Plaintiff, in his petition, tendered the aggregate of his bids on said 9 sections as a credit upon his judgment; also tendered costs of suit and sheriff's commissions, and asked judgment against the sheriff for $6,300 received by him from Needham as the purchase price of sections 21, 23, and 25; also prayed judgment against Harrison, Needham, and the Trans-Pecos Land & Irrigation Company canceling the sheriff's deeds to the other 9 sections, and for decree vesting title to the land in plaintiff.

Appellants interposed general and special exceptions, a general denial, and special plea that plaintiff was not entitled to have his bids accepted by the sheriff and applied towards the satisfaction of the judgment in cause No. 781; that on February 4, 1913, plaintiff had caused and procured said judgment to be assigned to the First National Bank of Pecos, which assignment was placed of record and noted on the margin of the minutes of said judgment prior to the date of the sale, and the First National Bank was the owner of the judgment on the day of sale, which the defendant Needham announced; that plaintiff failed to deny it, and is now estopped, and had no right at said sale to tender any bid as a credit upon said judgment; that he had failed to file any replevin bond with the sheriff in cause No. 1293, and thereby release said attachment and garnishment.

Plaintiff filed a supplemental petition, alleging that he was the owner of said judgment in cause No. 781 at the time of the sale, and denying that the assignment was executed by him or by his authority.

The pleadings are inexcusably voluminous. Since the questions discussed arise almost exclusively upon exceptions, we have stated same in greater detail than is ordinarily necessary, and have stated all that is material to a consideration of the correctness of the disposition made of the exceptions.

Upon trial the jury was peremptorily instructed to return a verdict:

"First. In favor of the plaintiff, P. Albert Cooney, against the defendants, Leslie A. Needham, the Trans-Pecos Land & Irrigation Company, and Tom Harrison, for sections Nos. 27, 29, 32, 33, 35, 39, all in block No. 2, and sections Nos. 3, 5, and 7, all in block No. 3, all in Houston & Great Northern Railway Company survey, Reeves county, Tex., and being part of the lands described in plaintiff's petition. * * *

"Fourth. In favor of the plaintiff against the defendant Tom Harrison, sheriff, for the sum of $5,282, being a part of the money now held in his hands derived from the sale in cause No. 781, styled P. Albert Cooney v. E. Leslie Cole et al., and being the difference between the aggregate amount of plaintiff's bids on the first above nine sections of land and his judgment in said cause No. 781, directing that the said defendant Tom Harrison, sheriff, turn over and deliver to the plaintiff the said sum of money. * * *"

Verdict was returned in conformity with this instruction, and judgment thereon rendered, from which the defendants have appealed.

Under their first assignment they complain of the overruling of an exception to the petition; the proposition urged in support thereof being that, in making sale of the lands under the order of sale issued in cause No. 781, the sheriff was not obligated at his peril to accept plaintiff's tender or a credit upon the judgment in said cause when he had in his hands a writ of attachment against Cooney, but had the right to demand the payment of cash in satisfaction of all bids made.

It is often broadly stated that judicial sales must be for cash. It is apprehended this general statement of the rule means only that such sales cannot be made upon credit without special statutory provision or decretal direction, and the general rule thus stated is not intended to apply in the case of or to preclude the right of an execution creditor to apply the amount of his bid as a credit upon his judgment.

Freeman, in his treatise upon Executions says:

"Under ordinary circumstances, the officer need not, and ought not, to receive any other than an unconditional cash bid. But he ought to remember that the writ is taken out and levied for the benefit of the plaintiff, and that the wishes and interests of the latter, when he is indisputably entitled to the proceeds of the sale, should be respected, unless he insists upon something tending unnecessarily to prejudice or oppress the defendant. Hence the plaintiff should be allowed to accept payment in any manner satisfactory to himself. If the plaintiff becomes the purchaser, the officer ought not to exact payment in coin from him when he is clearly entitled to the proceeds of the sale." 2 Freeman on Executions (2d Ed.) § 301.

Our Supreme Court quoted a portion of the foregoing excerpt in Blum v. Rogers, 71 Tex. 668, 9 S. W. 595, and added:

"It would be an idle ceremony if the plaintiff, on buying at a sale for his benefit, should be required to actually hand over to the sheriff the money to be returned at once. The receipt of the plaintiffs acquits the sheriff equally with his bringing into court the proceeds of sale with the execution under which they are made."

In Nichols v. Ketcham, 19 Johns. (N. Y.) 92, it is said:

"It would be unreasonable and injurious to debtors, as well as creditors, to insist that the creditor on the execution should advance money on his bid, when the sole object of the sale, is to put money in his pocket, by paying a debt due to him."

So it may be said to be the well-settled rule that, where the judgment creditor becomes the purchaser at an execution sale, the officer should, at his direction, credit the amount of his bid upon the execution, if the costs are paid in cash....